NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.W.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

M.W.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF B.M.A.W., a minor

_________________________________

Submitted May 1, 2013 Decided

Before Judges Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-112-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the briefs).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M.

Silkowitz, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor B.M.A.W. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant M.W., the biological father of B.M.A.W. (Bonnie),2 appeals from the May 31, 2012 termination of his parental rights to the child. On appeal, M.W. contends that the judge erred by permitting the New Jersey Division of Youth and Family Services (Division) to continue Bonnie's placement with her resource mother rather than accept his preferred placement of Bonnie with her paternal grandmother.3 The Division and Bonnie's Law Guardian urge us to affirm the judgment. We agree and affirm.

Bonnie was born in January 2009. Her mother, Q.R., tested positive for phencyclidine (angel dust) when Bonnie was born. As a baby, Bonnie was diagnosed with chronic asthma, eczema and antibiotic-resistant staph infections. She was removed from Q.R. for the first time at the age of three months. Q.R. was involved with the Division as a child and was diagnosed with bipolar disorder and chemical dependence. She receives Social Security Disability payments. She was unable to complete services provided by the Division in spite of many attempts. Bonnie was removed and then returned to Q.R. on multiple occasions.

Bonnie was placed with her paternal grandmother for three days in August 2009, until the grandmother asked for her to be removed because Q.R. was harassing the grandmother. Later in 2009, the Division contacted the grandmother for placement. She said she was unable to take Bonnie because she was caring for two extremely sick relatives. The grandmother testified that she did not contact the Division about Bonnie between August 2009 and January 2011 because she thought the baby was living with Q.R. The grandmother did not see Bonnie during this time. The grandmother, who cares for two children the Division placed in her care, has had positive, supervised visits with Bonnie since the middle of April 2011.

The visitation reports indicated that they have a positive relationship. The visitation supervisor noted one occasion when Bonnie came to the visit dirty, wet and smelly, although generally Bonnie appeared well-dressed and well-groomed. On several occasions Bonnie attended visits with minor injuries.4

In March 2010, at the request of Q.R., Bonnie was placed with her current resource mother. The resource mother is the biological mother of a four-year-old boy whose father is Q.R.'s brother. Q.R. made an identified surrender to the resource mother in July 2011,5 although in March 2012, Q.R. told the judge that she no longer wanted her daughter to stay in that home. At the time of the termination decision, Bonnie had been with the resource mother for more than two years, with the exception of one brief, unsuccessful return to Q.R. in September to October 2010. Several referrals to the Division against the resource mother, of smoking cigarettes, domestic violence and smoking marijuana, apparently lodged by Q.R., were investigated by the Division and determined to be unfounded. Q.R. admitted making

false referrals to the Division because she was not allowed to visit Bonnie.

Dr. Peter DeNigris, an expert in the field of clinical psychology, who was called by the Division, was the only expert to testify at trial. Dr. DeNigris testified that Bonnie was forming a bond with her resource mother. He said that Bonnie's ability to bond in the critical first three years of her life had been negatively impacted by her many placements. Dr. DeNigris also testified that Bonnie lacked the resilience to withstand another failed placement, and that removal from her resource mother would harm the child.6 He found that the resource mother was Bonnie's "psychological parent" and confirmed that Bonnie "called the current caretaker momma during" the bonding evaluation. He also opined, in response to hypothetical questions, that Bonnie was unlikely to have formed a bond with her grandmother after three days of care, an absence of fifteen months, followed by five months of weekly visitation. Dr. DeNigris recommended that Bonnie remain with her resource mother.

M.W. does not dispute the trial judge's determination that "[h]e has not participated in any services provided by the

Division and he has not been involved in his daughter's life in any meaningful way." The judge found that he "has no relationship with his daughter . . . ." The Division records reflect that M.W. visited with his daughter on one occasion only.7 M.W. argued that by offering his mother as a caretaker, he fulfilled his parental obligations. He expressed his willingness to execute an identified surrender to his mother, and argued that his mother should be permitted to adopt Bonnie because that would be in Bonnie's best interests.

On appeal, M.W. raises the following issues:

POINT I: IN FINDING THAT THE STATE HAD PROVEN ITS BURDEN UNDER N.J.S.A. 30:4C-15.1(a), THE JUDGE ABDICATED HER RESPONSIBILITY FOR MAKING A JUDICIAL DETERMINATION AS TO THE BEST INTERESTS OF THE CHILD.

POINT II: THE JUDGE ERRED BY ABDICATING HER []RESPONSIBILITY FOR MAKING A JUDICIAL DETERMINATION AS TO WHICH PERMANENT PLACEMENT WOULD BE IN THE BEST INTERESTS OF THE CHILD.

POINT III: THE DIVISION'S THWARTING THE GRANDMOTHER'S EFFORTS TO ADOPT HER GRANDCHILD AND ITS CASUAL APPROACH TO DECISION-MAKING REGARDING THE CHILD'S BEST INTERESTS WERE VIOLATIONS OF ITS DUTY TO PLACE A CHILD WITH A RELATIVE WHENEVER POSSIBLE.

The standard of review in parental termination cases has been established by the New Jersey Supreme Court:

Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family. . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights.

[N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (citations and internal quotation marks omitted).]

The Supreme Court has "consistently imposed strict standards for the termination of parental rights." See In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999) (citations omitted). When seeking the termination of a parent's rights pursuant to N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing, by clear and convincing proof, the following factors:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
 

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
 
(4) Termination of parental rights will not do more harm than good.

These "four prongs are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." F.M., supra, 211 N.J. at 448 (citations and internal quotation marks omitted).

"Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J. at 347 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

We affirm the termination of M.W.'s parental rights substantially for the reasons expressed in the trial judge's twenty-four page written decision of May 31, 2012.

We add only the following discussion with regard to the heart of M.W.'s appeal, that the judge erred in not removing Bonnie from her resource mother and placing her permanently with her paternal grandmother. The best interests of the child must be used as a standard to determine whether to terminate parental rights. N.J.S.A. 30:4C-15.1(a); see N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004). M.W. presented no expert evidence to contradict the Division expert's opinion that it was in Bonnie's best interests to remain with her resource mother.

Bonnie had been living with her young cousin and resource mother for much of her short life. Although a child is entitled to the Division's best efforts for relative placement, no presumption exists in favor of placement with a relative. N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528-29 (App. Div. 2003). All efforts at placement with relatives must be consistent with the welfare of the child. N.J.S.A. 9:6B-4(b), (d), & (f). Unlike in New Jersey Division of Youth & Family Services v. K.L.W., 419 N.J. Super. 568 (App. Div. 2011), here the grandmother was allowed to visit Bonnie in the hospital at birth, and Bonnie was taken from her at the grandmother's request after only three days of initial placement. Also, here the grandmother refused a later placement and then failed to

contact the Division for more than fifteen months. Even if the Division should have made a greater effort to place Bonnie with her paternal grandmother, "[d]elay of permanency or reversal of termination based on the Division's noncompliance with its statutory obligations is warranted only when it is in the best interests of the child." Id. at 581. Bonnie has been adversely affected by her numerous placements. She is not resilient. The judge's decision to terminate M.W.'s parental rights and keep Bonnie in her current placement is supported by clear and convincing evidence in the record, including Dr. DeNigris' recommendation.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 This name is fictitious.

3 Although the guardianship trial took place in August 2011, a decision was delayed by the Division's successful application to reopen the hearing pending a decision on its abuse and neglect complaint filed against the paternal grandmother for abandoning a runaway child in her custody on August 24, 2011. That complaint was subsequently dismissed after a fact-finding by another Family Part judge. The Division's decision to rule out the grandmother as a placement for Bonnie based on that complaint was then reversed after an administrative appeal that did not determine that Bonnie should be placed with her paternal grandmother, only that the grandmother was "willing and able" to be a placement option.

3

4 The resource mother gave a reasonable explanation to the Division for the most serious of these injuries, the only one that the Division investigated.

5 See N.J. Div. of Youth & Family Servs. V. D.M.B., 375 N.J. Super. 141, 145-47 (App. Div.) (discussing an "identified surrender"), certif. denied, 183 N.J. 586 (2005).

6 Dr. DeNigris acknowledged on cross-examination that his report did not indicate that Bonnie would experience "serious and enduring emotional or psychological harm" if removed.

7 A psychological evaluation of M.W. was not conducted after he failed to appear for his scheduled evaluation twice.

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